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Civil Revision No. 1340/13 and Civil Miscellaneous No. 2937‑C of 1986, decided on 3rd June, 1986.

(a) Civil Procedure Code (V of 1908)‑‑

‑‑ O. XVII, Rr.

1(3) & 3‑Closure of evidence of plaintiffs‑Course to be adopted by Court after such closure‑It being primarily for plaintiffs to lead evidence to establish title to disputed property, failure of production of evidence thereto, held, would not require defendant to prove their title or other alternative plea ‑Where after closure of plaintiffs evidence, defendant was not willing to produce evidence, there would be no sense in adjourning case for his evidence‑Further step would be arguments of parties and same having been addressed on same day case would be ripe for decision which could be announced on same day.

(b) Civil Procedure Code (V of 1908)‑

--0. XVII, Rr. 1(3) & 2‑Non‑production of evidence‑Dismissal of suit in default ‑ Requirements ‑ Where on date of closure of evidence of plaintiffs counsel was present actively participating in proceedings by addressing arguments before Court such suit, held, could not be dismissed in default.

Muhammad Sadiq v. Muhammad Sharif and another 1986 C I. C 1435 ref.

(c) Civil Procedure Code (V of 1908)‑

‑‑ O XVII, Rr. 2 & 3‑Failure to produce evidence‑Five adjourn ments granted by Court ‑On last adjourned date plaintiffs were again absent‑Counsel for plaintiffs not seeking further adjournment -Plaintiffs being guilty of contumacy and gross negligence, held, could not contend that Court should not have disposed of case under R. 3 of O. XVII, C. P. C. because material needed for its decision on merits was not there.

(d) Civil Procedure Code (V

or 1908)‑

‑‑‑ O. XX, R. 5‑Omission of Court to record clear findings on certain issues‑Effect of such omission‑Plaintiffs claimed title over property and issue thereon having been properly and correctly decided by Court in the negative, decision on other issues in case of remand would be in the negative for lack of evidence‑Even if decisions on such issues were otherwise, suit, held, must fail due to finding on title already given by Court‑Remand of case being exercise in futility same was refused even if judgment was not strictly in conformity with provisions of O: XX of Civil Procedure Code.

(e) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Revisional jurisdiction, exercise of‑Where conduct of plaintiffs was contumacious and suffered from gross negligence for default in production of evidence even if finding of Court was not strictly in conformity with provisions of O. XX of Civil Procedure Code, High Court in exercise of revisional jurisdiction declined interference in findings of Courts below holding remand of case to be an exercise in futility.

Rana Nusrullah Khan for Petitioner.

This civil revision has arisen out of a suit brought by Mst. Ramzan Bibi and thirteen others, against two persons, namely, Ahmad Din (son of Fateh Din) and Iftikhar Ahmad. It was alleged by the plaintiffs that they and defendant No. 1, Iftikhar Ahmad, were owners of a piece of land but it was forcibly occupied by defendant No. 1, Ahmad Din (son of Fateh Din), about six months ago. According to the plaintiffs, the land in dispute originally belonged to another Ahmad Din (son of Wazira) and on his death it was inherited by them and defendant No. 2. With these averments, they prayed for a decree for possession of the land in question. They also asked for perpetual injunction restraining defendant No. 1 from raising construction on the land in dispute and making any alienation thereof. Defendant No. 2 confessed judgment but defendant No. 1 resisted the suit. It was denied by him that the land in dispute was owned by Ahmad Din son of Wazira and bad devolved upon the plaintiffs and defendant No. 2 as his heirs. According to defendant No. 1, he was exclusive owner thereof. Alternatively, he claimed its ownership through prescription. He also advanced some other pleas in defence of the suit. On this, the Civil Judge, before, whom the suit was filed, struck the following issues:‑

(1) Whether the suit property was owned by Ahmad Din deceased as mentioned in Para. No. 4 of the plaint' O. P. P.

(2) Whether the plaintiffs and defendant No. 2 are the legal heirs of Abmad Din deceased and as such are owners of the suit land by

way of inheritance O. P. P.

(3) Whether the present suit is hit by section 11 of C. P. C. O. P. D.

(4) Whether the defendant is owner of suit property by way of adverse possession O. P. D.

(5) Whether the plaintiffs have come with unclean hands O. P. D.

(6) Whether the suit is time‑barred O. P. D. (7) Relief.

It appears that after the framing of issues defendant No. 2 was transposed as plaintiff No. 15 and thus Ahmed Din son of Fateh Din was left as the only defendant in the suit. Five adjournments were allowed to the plaintiffs to produce evidence but they failed to do so. On 9th June, 1985, therefore, their evidence was closed and the suit dismissed, under Order XVII, rule 3 of the Code of Civil Procedure. The plaintiffs went in appeal before an Additional District Judge but in vain. They, have, therefore, come up in revision to this Court.

2. While assailing judgment and decree passed by the learned Civil Judge, learned counsel for the petitioners did not take exception to the order of the learned Civil Judge in regard to closure of the evidence of the petitioners (plaintiffs) on 9th June, 1985. It was, however, contended by him that after closing their evidence the learned Civil Judge ought to have adjourned the suit, under sub‑rule (3) of rule 1 of Order XVII of the Code of Civil Procedure, for evidence of the respondent instead of deciding the suit forthwith under rule 3 thereof. Ahmad Din son of Fateh Din, who in the first instance was defendant No. 1 in the suit and then the only defendant therein, is respondent in the instant revision.

3. It was primarily for the petitioners to lead evidence to establish their title to the disputed property but as they had not produced an evidence in this behalf there was hardly any occasion to call upon the respondent to produce evidence to prove his title or substantiate his alternative plea of adverse possession. It may also be pointed out that after closure of the petitioners' evidence, it was stated by learned counsel for the respondent. on the asking of the learned Civil Judge or otherwise, that be had not to produce any evidence. There was, therefore, no sense in adjourning the case for his evidence. The further step which could then be taken by the parties was to argue the case; and it was, in fact, argued by their learned counsel on the same day. Thus, the case became ripe for decision and it could be decided forthwith. In this view of the matter, I find no merit to the submission of learned counsel for the petitioners that the learned Civil Judge should have adjourned the case under sub‑rule (3) of rule 1 of Order XVII, instead of deciding it forthwith under rule 3 thereof.

4. It was also maintained by the learned counsel that the learned Civil Judge ought to have dismissed the suit in default under rule 2 of Order XVII of the Code of Civil' Procedure instead. of deciding it on merits. Learned counsel for the petitioners (plaintiffs) was present on the fateful date and he did not say that be had no instructions to prosecute the suit. On the other hand, he actively participated in the proceedings by arguing the case on behalf of 'the petitioners. The suit could not, therefore, be dismissed in default. Similar view was expressed by me earlier in a case reported as Muhammad Sadiq v. Muhammad Sharif and another (1986 C L C 1435).

5. It was further submitted by learned counsel for the petitioners that a suit can be decided under rule 3 of Order XVII of the Code of Civil Procedure if there is some material on the record to enable the Court to do so but since there was no such material in the instant case it could not be decided as aforesaid. There will perhaps be no better case than the instant one to illustrate that the proposition propounded by learned. counsel for the petitioners, namely, that no case can be decided under rule 3 of Order XVII, fn the absence of requisite material, does not hold good in all situations. As indicated above, after the evidence of the petitioners was closed, it was stated by learned counsel for the respondent that he had not to produce any evidence. In the circumstances, the learned Civil Judge could not sit over the case, for an indefinite period, as a helpless functionary, waiting for the desired material, with no hope of its being received from any quarter. The proper course for him was to decide the suit forthwith as done by him.

6. Argument dealt with just above was also presented before me in Muhammad Sadiq's case and it was opined by me that if a party is himself responsible for not placing any material on the record of a case, it is not open to him to contend that since there is no material the case cannot be decided under rule 3 of Order XVII. In the case under report, after considerable discussion, it was held by me that in appropriate cases the Court can exercise its powers under rule 3 even if there is no evidence on the record. In the present case the petitioners persistently disobeyed the order of the Court regarding leading of evidence and no reason whatsoever was given for their failure to produce evidence on the date when their evidence was closed. They were allowed five adjournments to bring evidence although they had not furnished any good explanation for seeking these adjournments. The last date fixed for recording their evidence was 9th June, 1985, when all the petitioners, who were as many as fifteen in number, were conspicuous by their absence. It was stated by their learned counsel that they were repeatedly told to bring evidence but they had not done so nor they bad entered appearance. He, therefore, asked the learned trial Court to make any appropriate order. It was categorically stated by their learned counsel that he would not pray for adjournment. It seems that their learned counsel was also fed up with the petitioners due to their lack of interest in the case. He had already secured a number of adjourn ments for them and, perhaps, he thought that it was not fair to ask for any further adjournment. Petitioners were guilty of, contumacy and gross negligence. It, therefore, does not lie in their mouth to contend that the learned trial Court should not have disposed of the case under rule 3, o61rder XVII, because the material needed for its decision on merits wash not there.

7. Another plea raised by learned counsel for the petitioners was that the judgment passed by the learned Civil Judge was not in accordance with the provisions of Order XX of the Code of Civil Procedure inasmuch as all the issues framed in the suit were not decided by him. In regard to Issue No. 1, it was noted by the learned Civil Judge that the plaintiffs did not produce any evidence to prove that suit property was owned by Ahmad Din deceased" and, therefore, the "issue fails". There is nothing wrong with this finding. While dealing with Issues Nos. 2 to 6, it was again said by the learned Civil Judge in respect of each of these issues that there was no evidence thereon but he omitted to add the words "issue fails" or other similar words, with his said remarks. In view of what happened in the suit and the ultimate result thereof, it can hardly be disputed that according to the learned Civil Judge other issues were also not proved, but he did not say so in so many words.

8. Now the question which falls for determination is whether the judgments and decrees under challenge should be set aside due to the omission of the learned Civil Judge to record clear findings on Issues Nos. 2 to 6 and the suit remanded to him for fresh decision after recording such findings. As explained earlier, the petitioners claim title to the disputed land through Ahmad Din son of Wazira. Issue No. 1 was framed by the learned Civil Judge to find out if the land in question was originally owned by the said Ahmad Din. As indicated above, Issue No. 1 was properly and correctly decided by the learned Civil Judge. It was answered in the negative. In other words, it was held by him that the said Ahmad Din was not owner of the land in question. If the suit is remanded. the learned Civil Judge will not be required to decide Issue No. 1 again, because a clear finding was recorded by him on that issue, and it is not open to any legitimate exception. Issues Nos. 2 to 6 are also likely to be answered in the negative because there is no evidence thereon. Even if they are decided otherwise, the suit must fail due to finding on issue No. 1 because the very person (Ahmad Din son of Wazira) through whom the petitioners claim title to the disputed land has not been found to be its owner. In this view of the matter, the order of remand and the proceed ings following such order would be an exercise of futility. Further, on the passing of fresh judgment and decree by the learned trial Court, another round of appeals and revisions is expected to start. That would not only result in multiplicity of proceedings but would also put the parties to unnecessary bother and expense. The policy of law, however, is to discourage multiplicity of proceedings. It is also significant to mention that no prejudice has been caused to any of the parties due to the omission of the learned trial Court to record clear findings on Issues Nos. 2 to 6 because in the absence of any evidence thereon the parties could easily visualise the fate of these issues. There is nothing to show that the respondent had ever objected to the manner in which the said issues were dealt with by the learned Civil Judge. Plea of the learned counsel for the petitioners regarding non‑compliance with the provisions of Order XX, of the Code of Civil Procedure is also an afterthought because it was not advanced before the learned Additional District Judge. Had it been raised before the learned Additional District Judge, be could have decided fi Issues Nos. 2 to 6 himself because appeal is continuation of original proceedings and the appellate Court can do all that can b: done by the Court of first instance. Petitioners' conduct in objecting, before this Court, to the manner of disposal of Issues Nos. 2 to 6 by the learned trial Court, without their taking exception thereto before the learned appeIlate Court speaks of their coming to this Court with unclean hands. Revisional jurisdiction under section 115 of the Code of Civil Procedures is discretion ary in nature and, in the circumstances of the present case, I am not inclined to exercise that jurisdiction for the purpose of interfering with the judgment of the learned Civil .fudge merely due to his omission to answer Issues Nos. 2 to 6 in clear terms.

9. Resultantly, this civil revision fails. It is dismissed in limine.

A. A. Revision dismissed.

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